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    4 views19 pages

    Asoperating Agreement 12 21 02

    Uploaded by

    PGG Drive

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Operating Agreement (Name), a Florida Limited Liability Company THIS OPERATING AGREEMENT of (Name) (the “Corfpany”) is@ntered into as of the date set forth on the signature page of this Agreement by each of the Membérs listed on Exhibit A of this Agreement, A. The Membersthav® formed the Companylas a Florida limited liability company under the Florida,Limited Liability Company Aét, The purpdse of the Company is to conduct any lawful business for which limitedbliability companies may be organized under thellaw’ of the state of Florida. The Membeis hereby adopt and approve the artieles of oFganization of the Gompany filed with the Florida Department of State. B. & TheMembers enter into this Agreement to provide for the governance of the Company and the conduct of its business,jand to specify their relative rights and obligations. ARTICLE 1: DEFINITIONS Capitalized terms used inthis Agreement have the meanings specified in this, Article Lorelsewhere in this Agreement and if not so specified, have the meanings set forth in the Florida Limited Liability Compeny Act. “Agreement” means this Operating Agreement of the Company, as may be amended from time to time. “Capital Account” means, with respect to any Member, an account consisting of such Member's Capital Contribution, (1) increased by such Member's allocated share of income and gain, (2) decreased by such Member's share of losses and deductions, (3) decreased by any distributions made by the Company to such Member, and (4) otherwise adjusted as required in accordance with applicable tax laws. “Capital Contribution” means, with respect to any Member, the total value of (1) cash and the fair market value of property other than cash and (2) services that are contributed and/or agreed to be contributed to the Company by such Member, as listed on Exhibit A, as may be updated from time to time according to the terms of this Agreement. “Exhibit” means a document attached to this Agreement labeled as “Exhibit A,” “Exhibit B,” and so forth, as such document may be amended, updated /6r replaced from time to time according to the terms of this Agreement. “Manager” means each Pef&on who has authotity to manage the Busifiess and affairs of the Company pursyaft to this’ Agreement; sugh Persons are listed on Exhibit B, as may be updated from.time to time accordingito.the tétms of this@Aigreement. A Manager may be, but is ot Fequired to be, aMember) “Member means each Person who azquires(Membership Interest pursuant to this Agreemeft The Members are listed on Exhibit A, as may be updated from time to time according {6 the terms of this Agre’ment. Each Member has the rights and obligations‘pecified in this Agreement, “Membership Intefest” theans the en:ire Swnership interest of a Member in the Company at any particular time, ineldidling the right to any and all benefits to which a Member may be entitled as provided in this Agreement and under the Florida Limited Liability Comparty Aétptogether with the obligations of the Member to comply with all of the terms and provisions Ofithis Agreement. “Ownership Intefest” means the Percentage Interest or Units, as applicable, based/on the manner int which relative ownership of the Company is divided. “Péfeentage Interest” means the percentage of ownership in the Company that, with respect to each Member, entitles the Member to a Membership Interest and is expressed as either: A. Ifownership in the Company ‘s expressed in terms of percentage, the percentage set forth opposite the name of each Member on Exhibit A, as may be adjusted from time to time pursant-o this Agreement or B. _ If ownership in the Company is expressed in Units, the ratio, expressed as. a percentage, of: (1) ___ the number of Units owned by the Member (expressed as “MU” in the equation below) divided by (2) the total number of Units owned by all of thé Membersiof the Company (expressed as “TU” in the equation below). Percentage Interest =U TW “Person” means an ifidividual (natural person), partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, whether domestic or foreign. “Units” aflean) ifownership in the Campany‘is expressed in Units, units of ownership invthé Gompany, that, withyrespcct to’each Member, entitles the Member to a Membership Interest which, if applicablé is expressed as the number of Units set forth opposite the name of each Member on Exhibit A, asimay be adjusted from time to time pursuant to this Agreements ARTICLE,2: CAPITAL CONTRIBUTIONS, ADDITIONAL MEMBERS, CAPITAL ACCOUNTS AND LIMITED LIABILITY 2.1 Initial Capital(Contributions. The names of all Members and each of their respectiy@laddresses, initial Capital Contributions, and Ownership Interests must be set forth’on Exhibit A. Ead)Member has made or agrees to make the initial Capital Contributionssétferth next to such Member's name on Exhibit A to become a Member of the\Gompany. 2.1 Subsequent Capital Contributicns. Members are not obligated to make additional Capital Contributions unless unanimously agreed by all the Members. If subsequent Capital Contributions are unanimously agreed by all the Members in a consent in writing, the Members may makesuch additional Capital Contributions on a pro rata basis in accordance with each Member's respective Percentage Interest or as otherwise unanimously agreed by the Members. 2.2 Additional Members. A. With the exception of a transfer of interest (1) governed by Article 7 of this Agreement or (2) otherwise expressly authorized by this Agreement, additional Persons may become Members of the Company and be issued additional Ownétship Interests only if approved by and on terms determined by a unanimous written agreement signed by all of the existing Members. B. Before a Person may be adinitied as a Member of the Gofmpany, that Person must sign and deliver to the Gompany the documents and instrumentsyin the form and containing the information.required by theCompany, that the Managers deem necessary or desirablé, including; but not limited to, a signed consent in the form of Exhibit D. Membership Interests of new Members will beallocatedaecording to the terms of this Agreements 24 Capifal Accounts. Individual Capital Accounts must be maintained for each Member, unless (a), there is only one’Member ofthe Company and (b) the Company is exempt according to applicable tax laws))Capital Accounts must be maintained in accordance‘withvall applicable tax laws, 2.5 Interest. No iriterestwill be paid by the Company or otherwise on Capital Contributions or on the balanée of a Member's Capital Account. 2.6 Limitéd Liability; No Authority. A Member will not be bound by, or be personally liable for) the expenses, liabilities, debts, contracts, or obligations of the Company, except as otherwise provided in this Agreement or as required by the Florida Limited:Liability Company Act. Unless expressly provided in this Agreement, no Member, acting alone, has any authority to undertake or assume any obligation, debt, or responsibility) Or otherwise act on behalf of, the Company or any other Member. ARTICLE 3: ALLOCATIONS AND DISTRIBUTIONS, 3.1 Allocations. Unless otherwise agreed to by the unanimous consent of the Members any income, gain, loss, deduction, or credit of the Company will be allocated for accounting and tax purposes on a pro rata basis in proportion to the respective Percentage Interest held by each Member and in compliance with applicable tax laws 4 3.2. Distributions. The Company will have the right to make distributions of cash and property to the Members on a pro rata basis in proportion to the respective Percentage Interest held by each Member. The timing and amount of distributions will be determined by the Managers in accordance with the Florida Limited Liability Company Act, No distribution may be made if, after the distribution, the Company would be insolvent. 3.3. Limitations on Distributions. The Company must Robmaked distribution toa Member if, after giving effect to the distribution: A. The Company woulél be uftable to pay its debts as they becbmé due in the usual course of business; or The fair value of the Company's total assets would be'less than the sum of its total liabilities plusythe amount that woud be needed, if the Company were to be dissolved at thefime ofthe distribution, to satisfy the preferential rights upon dissolution of Members, if any, whos@ preferential rights are superior to those of the Members receiving the distribution ARTICLE 4: MANAGEMENT 4.1 Management. A. Generally. Subject.to the terms of this Agreement and the Florida Limited Liability Company Act, the business and affairs of the Company will be managed by the Board!ofManagers/as further described below. The Members initially nominate and electithe Person(s) set forth on Exhibit B to serve as the Manage1(s) of the Company. The Managers will’a¢tunder the direction of the Members and may be elected or removed at anytime, for any reason or no reason, by the Members holding a majority of the Voting Interest of the Company. Exhibit B must be amended to reflect any changes in Managers, B. Approval and Action. Unless greater or other authorization is required pursuant to this Agreement or under the Florida Limited Liability Company Act for the Company to engage in an activity or transaction, all activities or transactions must be approved by a majority of Managers, to constitute the act of the Company or serve to bind the Company, but if the Managers cannot reach a majority vote, the dispute will be submitted to the Members to be resolved by the affirmative vote of the Members holding at least a majority of the Voting Interest of the Company. With such approval, the signature of any Managers authorized to sign on behalf of the Company is sufficient “S- to bind the Company with respect to the matter or matters so approved. Without such approval, no Managers acting alone may bind the Company to any agreement with or obligation to any third party or represent or claim to have the ability to so bind the Company. C. Certain Decisions Requiring Greater Authorization¢Notwithstanding clause B above, the following matters require unanimous approval of the Members ina consent in writing to constitute an act of the Company: (i) A material changein the purposes or the nature ofthe Coripany’s business; (ii) With thelexception of a transfen of interest governéd by Article 7 of this Agreement, the admission of a new Membér or a change in any Member's Membership Interest, Ownershipiinterest, Percentage Intérest, or Voting Interest in ay manner other than in accordance with this Agreement; (ii), The merger of the Conipany with any other entity or the sale of all or substantially all of the Company's assets; and (iv) The amendimentof.this Agreement. 4.2. Meetings¥6fManagers. Regular meetings of the Managers are not required but may be held at such tim@land placé as the Managers deem necessary or desirable for the reasonable management of the Company. Meetings may take place in person, by conferenc@ieall, or by aity other means permitted under the Florida Limited Liability Company Act. In addi without a meetifigif all of the Managers corsent in writing to approve the action. | Company actions requiring a vole may be catzied out 4.3 Officers, The Managers are authorized to appoint one or more officers from time to time, The'officers will have the titles. the authority, exercise the powers, and perform the duties that the Managers determine from time to time. Each officer will continue to perform and hold office until such time as (a) the officer’s successor is chosen and appointed by the Managers; or (b) the officer is dismissed or terminated by the Managers. which termination will be subject to applicable law and, if an effective employment agreement exists between the officer and the Company, the employment agreement. Subject to applicable law and the employment agreement (if any), each officer will serve at the direction of Managers, and may be terminated, at any time and for any reason, by the Managers. The officers of the Company will be listed on Exhibit C, as may be updated from time to time according to the terms of this Agreement. 6 ARTICLE 5: ACCOUNTS AND ACCOUNTING 5.1 Accounts, The Company must maintain complete accounting records of the Company’s business, including a full and accurate record of each Company transaction, The records must be kept at the Company's principal executive officeand must be open to inspection and copying by Members during normal business houirs upon reasonable notice by the Members wishing to inspect or copy the records or their authorized representatives, for purposes reasonably related to the Membérship Intefest of such Members. The Company will provide former Members and their agerifs and attorneys access for proper purposes to records pertaining to the period during which théy were Members. The Company may impose a Feasonable cliarge, limited to the eosts of labor and material, for copies of records furnished. 5.2. Records. The Managers will keep(r cause the Company'to keep the following business records, ()\ ‘An up to date listof the Mertbers, each of their respective full legal names, last known business, residential, or mailing address, Capital Contributions, theiamount and terms of any agreed upon future CapitahContributions, and Ownership Interests, and Voting Interésts; (i), A copy of th@Company's federal, state, and local tax information ‘afithincome tax'teturnsand reports, if any, for the six most recent taxable Years; ‘A cpy of the articles of organization of the Company, as may be amended from time to lime ("Arlicles of Organization”), and any other documents filed with the Florida Department of State concerning the Company, together with copies of any power of attorney pursuant to which any Articles of Organization or certificates were executed; (iv) The times at which or events on the happening of which any additional Capital Contributions agreed to be made by each member are to be made and (v) An original signed copy, which may include counterpart signatures, of this Agreement, and any amendments to this Agreement, signed by all then-current Members. J 53 Income Tax Returns. Within 45 days after the end of each taxable year, the Company will use its best efforts to send each of the Members all information necessary for the Members to complete their federal and state tax information, returns, and reports and a copy of the Company's federal, state, and local tax information or income tax returns and reports for such year. 5.4 Subchapter § Election. The Company may, upon unanimous cofsent of the Members, elect to be treated for income tax surposes as an S Corporation, This designation may be changed as permitted under the Internal Revenue Code Sectioht 1362(d) and applicable Regulations, 5.5 Tax Matters Meinbér. Anytime the Companijris required to designate or select a tax matters partner purstiant to Sect on,6231(a)(7) ofthe Internal Revenue Code and any regulations issued by the Internal Keyenue Service, the Members must designate one of the Members as the tax miatters partner of the Company and keep such designation in effect at all times. 5.6 Banking. All funds of the Company must be deposited in one or more bank accounts in'the name of the Company withipne or more recognized financial institutions. Thé Managers are authorized to establish such accounts and complete, sign, and deliver any banking tésolutions\reasonably required by the respective financial institutions in order toestablish an account. ARTICLE 6: MEMBERSHIP=VOTING AND MEETINGS AND DISQUALIFICATION 6

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